On December 15, 2009, the Good Government Act, 2009 received royal assent. This statute amended or repealed over 300 pieces of legislation, ranging from the Accumulations Act to the Off-Road Vehicles Act. There are various amendments that should be of particular interest to those of us who practice estate, capacity and trust litigation.
The Crown Administration of Estates Act is amended by adding a new section 5.1, dealing with the enforceability of compensation agreements. A “compensation agreement” is defined to mean an agreement with an heir of an estate that provides for compensation, directly or indirectly, to one or more persons or entities on the location, recovery or distribution of any interest in the estate to which the heir may be entitled. In cases of estates administered by the Public Guardian and Trustee, there must be fair disclosure before a possible heir is asked to sign a compensation agreement. In addition, there is a cap on compensation of 10 per cent of the value of the possible heir’s interest in the estate. Click here for the complete text of the Act.
The Health Care Consent Act, 1996 is amended to increase the time allowed, from two days to four days, for the Consent and Capacity Board to issue written reasons for decisions. In addition, the Act is amended to allow the Board to direct Legal Aid Ontario (instead of the Public Guardian and Trustee or the Office of the Children’s Lawyer) to arrange for legal representation for a person who may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service. Click here for the complete text of this Act.
Bianca La Neve
Bianca V. La Neve – Click here for more information on Bianca La Neve.
A private member’s bill that would decriminalize medical practitioners assisting with suicide is about to get its first reading in the House of Commons.
Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code. Currently, these provisions criminalize (or confirm the criminal liability of) medical practitioners who participate in patients’ suicides by providing their services. Bill C-384 would create an exception to criminal liability for medical practitioners if prescribed elements were met: patients would have to be 18 years of age, suffer from a terminal illness or be in severe pain without prospect of relief (though a patient who refuses pain-killers still qualifies), provide 2 written consents to die "while appearing to be lucid" at least 10 days apart, and provide a written designation of another person to act on his or her behalf if he loses lucidity.
The phrase "while appearing to be lucid" rings alarm bells off their walls. The test implies a very low capacity threshold by comparison to say, testamentary capacity, but does not deliberately fit anywhere identifiable on the capacity threshold scale. From a estates law perspective, there is no requirement in the bill that medical practitioners consult personal care guardians or attorneys before going about their business. There is no requirement for a guardian or attorney to even consider these issues, but such legal possibilities might dramatically complicate the duties and obligations of a guardian or attorney.
From this quick analysis, this bill appears to have been written without input from the estates bar (which is unsurprising – it is the first reading of a private member’s bill in a criminal law matter in federal jurisdiction). This is a good example of how broad the estates/capacity field is and the potential effects of developments in other areas of law on estates/capacity law.
Have a great day, and enjoy every day you get,
Christopher M.B. Graham – Click here for more information on Chris Graham.
BBC News recently commented on a study published in the Lancet journal that shows more than half the babies now born in the UK and other wealthy nations will live to be 100 years old. The data from the study indicates that these extra years would be spent with less serious disabilities for the elderly.
The researchers, from the Danish Aging Research Center, refer to “four ages of man”-child, adult, young old age and old old age. Surprisingly, there was little evidence that those who belonged in the old old age group were unhealthier that those in the young old age group likely because the frailest elderly died first leaving the more robust to survive past the age of 85. Danish and American studies show that about 30%-40% of those falling into the old old group live independently.
Of course, such a development requires countries to reform their health-care services, employment practices, and care services. In the U.K., with an election looming, the Tory party has promised a Home Protection Plan that would allow people at the age of 65 to make a one time payment plan of £8,000 pounds in exchange for free full-time residential care in later life. This proposed policy addresses the issue of the elderly having to sell their houses in exchange for funding care giving services.
A significant longer life expectancy requires careful retirement and estate planning. If this trend towards increased life expectancy continues, long standing assumptions will have to be altered.
Thanks for reading,
Diane Vieira – Click here for more inforamtion on Diane Vieira.
One form of Advance Directive is the Do Not Resuscitate Order, commonly referred to as a DNR Order, or simply a DNR. It is a written order, signed by a medical professional, indicating one’s desire that lifesaving measures not be initiated if one were to stop breathing or if one’s heart has stopped. A DNR Order is generally only put in place when a person is suffering from a serious, often terminal condition, and when ‘CPR will almost certainly not benefit the patient and is not part of the plan of treatment’.
Up until February 2008, an odd, but not insignificant loophole existed that prevented paramedics and firefighters from honouring any existing DNR while a person was being provided with emergency assistance on the scene, or while in transport to a medical facility. The Ambulance Act’s Basic Life Support Patient Care Standards, Version 2 meant that paramedics were legally obliged to initiate life support measures, including, but not limited to, chest compressions, artificial ventilation, and intubation. Perhaps 911 had been called in order for the person to be transported to a hospital to be rehydrated, or to be treated for an infection. Prior to February 2008, if something catastrophic were to thereafter unfold en route, emergency resuscitation measures would have been initiated, possibly with unimaginable consequences, even if a DNR order was provided to the paramedics or firefighters on-site.
In order to address this disconnect between personal wishes, best intentions and legal constraints, a DNR Task Force was struck in 2003. As a result, there is a new Do Not Resuscitate Confirmation Form that became the new standard in Ontario as of February 1, 2008. Once completed by a physician or nurse, the form authorizes paramedics and firefighters to withhold life support measures, as well as to provide palliative comfort care measures such as suctioning, oxygen, pain control (including morphine) and tranquilizers. This form can be viewed online here.
Jennifer Hartman, guest blogger
The Mini-Mental Status Examination (MMSE) is a quantitative measure of cognitive status in adults. Since its creation in 1975, the MMSE has become the most widely used standardized cognitive screening test in both clinical practice and research.
As a screening tool, the MMSE can have limitations, some of which are outlined here:
· Interestingly, the MMSE was never actually designed for diagnosis of dementia; rather it was to be used as ‘a practical method for grading the cognitive state’ (Folstein et al.). As indicated by the team that designed the MMSE (Folstein et al.), in the Journal of Psychiatric Research, the MMSE "does have a number of valuable features for clinical practice even though it cannot carry alone the diagnostic responsibility.”
· Questions have been raised about the use of the MMSE to track cognitive changes over time, specifically, about the clinical relevance of these changes due to the potential for measurement error.
· One’s score on the MMSE is likely to be negatively skewed by a language barrier. Ironically, some patients in the advanced stages of Alzheimer’s Disease often revert to their native tongue, which, if not the English language, would serve to further skew their score.
· Psychological Medicine published a study back in 1982 that showed an increase in false positives amongst hospital patients with fewer than 9 years of education. Conversely, a highly educated person with mild dementia may score within the normal range on the MMSE.
· Studies have also shown that the test is not accurate in older adults who are illiterate.
· The MMSE is not reliable as a screening tool in someone with a learning disability (see reference) or a physical disability that would impair one’s ability to complete the test (e.g. blindness or deafness).
· A paper published in the Journal of Clinical Epidemiology reviewed MMSE results in older Mexican-Americans and found that the MMSE is ‘strongly influenced’ by noncognitive factors including marital status, language of interview and immigrant status.
When the MMSE is misused or applied inappropriately, cognitive deficits may be missed in some patients, while other patients may be misclassified. However, when applied prudently, and when considered in partnership with additional data (e.g. anecdotal information from family members, or the results of other cognitive tests), the MMSE is both a valuable and valid screening tool for measuring cognitive status.
Jennifer Hartman, Guest Blogger
My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales.
Several organizations exist to assist with different aspects of the moving process. One such example is Marsha’s Helping Hand, which helps when clients, particularly elderly people, want to downsize.
There are a lot of memories to manage and items to be packed up, distributed or possibly sold. Often the house itself must be sold. Many scenarios are possible – elderly people are downsizing or a home is being sold as part of an estate.
Estate sales can be slow however. Recently, the New York Times focused on this issue: delays can occur in transactions because of the dynamics between distant beneficiaries and the estate trustee, or even because of the emotional energy required by heirs who are assisting with the removal of the Deceased’s belongings.
There are understandable reasons for the delays in the estate sale process. Not least of which is that often the people who want to do the job are themselves busy with multiple responsibilities, be it child care or parent care or the demands of a paying job. Help is available though. Organizations, which cater to these increasing needs can assist, according to a recent Globe and Mail article.
These practical issues often dovetail with legal duties of the Estate Trustee, a role that may be more manageable when a plan is in place. Costs should always be considered though because ultimately, the Trustee has a duty to account to beneficiaries.
Enjoy your day.
As a former manager at an assisted living facility, I was often (too often) witness to the devastating aftermath of falls in the elderly. As an administrator, the direct effects of a fall are obvious and measurable. According to the Centers for Disease Control and Prevention, over 1.8 million Americans over age 65 are injured annually in falls. A recent New York Times article indicated that 433,000 of those will be admitted to hospital and 15,800 will die as a direct result of the fall. In Canada, estimates suggest that 1 in 3 elderly people living in the community will experience at least one fall a year. The Canadian Institute for Health Information (2002) reports that 75% of in-hospital deaths were due to injuries from a fall.
What are far more difficult to track and quantify are the indirect consequences of a fall, from which many elderly also do not survive.
Post-fall, in the hospital environs, an aged person is subject to the complications of the fall. They are immobilized in bed, usually catheterized, and are prone to infection, muscle atrophy and pneumonia, which extends the length of their stay in the hospital (generally 11-14 days according to Health Canada). When they are eventually discharged, whether to their own home or to a care facility, they are terrified of falling again. A downward spiral of loss of confidence, social isolation, nutritional risk, psychological fragility, and a depressing awareness of their vulnerability often ensues. Any underlying co-morbid health conditions (diabetes, respiratory illness or cardiac conditions) will dramatically accelerate this downward spiral.
By the year 2031, one in five Canadians will be over the age of 65, compared with one in eight in 2001, and the number of people over the age of 80 will double over the same time frame (The Demographic Time Bomb). The increasing number of falls in the elderly is an emerging public health crisis and thus fall prevention initiatives and more facilitative access to community-based supports for the elderly must be critical components of provincial and nationwide health care planning.
Jennifer Hartman (Guest blogger)
Listen to the Health Care Consent Act.
This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.
Listen to The Question of Compensation and Complaints.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.
Cases for Increasing and Decreasing Compensation – Hull on Estates and Succession Planning podcast #122
Listen to Cases for Increasing and Decreasing Compensation.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss cases for increasing and decreasing compensation.